Muhammad Arslan vs The State etc.

Stereo. HCJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT

BAHAWALPUR BENCH, BAHAWALPUR

JUDICIAL DEPARTMENT

Criminal Appeal No. 221/2025 Muhammad Arsalan Vs. The State and another

JUDGMENT

Date of hearing: 30.06.2025 For the Appellant: Malik Saeed Ejaz, Advocate.

Rao Riaz Ahmad Khan, Deputy Prosecutor For the Respondents:

General, with Muhammad Tayyab Ameer/T-SI.

Tariq Saleem Sheikh, J. – The Appellant is facing trial in connection with FIR No. 147/2022 dated 12.03.2022, registered under section 9(c) of the Control of Narcotic Substances Act, 1997 (“CNSA”) at Police Station Samma Satta, Bahawalpur. During the trial, the prosecution produced six witnesses whose evidence was recorded. Thereafter, the case was fixed for recording the Appellant’s statement under section 342 Cr.P.C. On 26.08.2024, he filed an application under Article 59 of the Qanun-e-Shahadat, 1984 (the “QSO”), read with Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”), praying that the Recovery Memo (Exh. PA), complaint (Exh. PB) and the rough site plan (Exh. PC) be sent to a handwriting expert for comparison with the handwriting of the Complainant/Respondent No.2, Muhammad Tayyab Ameer/T-SI (PW-3) who claimed that all those documents were in his handwriting. The Additional Sessions Judge, Bahawalpur, dismissed the application vide order dated 22.04.2025 (the “Impugned Order”). The Appellant has challenged that order through this appeal filed under section 48 of the CNSA.

The Impugned Order

2.The trial court observed that the evidence of all the prosecution witnesses, including the Complainant/Investigating Officer

Tayyab/T-SI (PW-3), had been recorded and that the defence had already conducted detailed cross-examinations. The case was fixed for the statement of the accused (Appellant) under section 342 Cr.P.C. If there were any contradictions in the prosecution’s case, their effect would be considered at the time of final arguments. The court added that under section 29 of the CNSA, a presumption arises against the accused unless proven otherwise. It further remarked that, according to settled case law, expert opinions on handwriting are generally weak and not conclusive, particularly when other direct evidence is available. Referring to Syed Shabbir Hussain v. The State (1968 SCMR 1126), the court concluded that seeking expert opinion at this stage would serve no useful purpose and only prolong the proceedings. It therefore dismissed the Appellant’s application.

The submissions

3.The Appellant’s counsel contends that the Impugned Order is perverse and not sustainable. He argues that the Appellant has been denied the right to a fair trial guaranteed under Article 10A of the Constitution. As such, it is liable to be set aside.

4.The Deputy Prosecutor General has controverted this appeal and supported the Impugned Order.

Opinion

5.Muhammad Tayyab Ameer/T-SI (PW-3) is the Complainant as well as the Investigating Officer of this case. He testified that on 12.03.2022, on a spy information, he along with other police officials apprehended the Appellant from Mouza Rama and recovered 1080 grams of crystal ICE from a polythene bag he was carrying. PW Tayyab/T-SI further stated that he separated 54 grams from the contraband and prepared a sealed sample parcel for chemical analysis. Then, he sealed the remaining ICE in another sealed parcel (P-1), affixed his stamp bearing the acronym “TA” on both the parcels in the presence of Sajid Nazir 462/HC (PW-2) and Riaz Hussain 1833/C (PW-5) and secured them vide Recovery Memo Exh. PA. After that, he drafted the complaint Exh. PB and sent it to the police station through Riaz Hussain 1833/C (PW-5) for the registration of FIR

No.147/2022 (Exh. PD). He further stated that subsequently the investigation of the case was also entrusted to him, which he conducted. He prepared a rough site plan (Exh. PC) and recorded the statements of the witnesses (Exh. DA, Exh. DB, Exh. DC, and Exh. DD).

6.During cross-examination, the Appellant asked Tayyab/ T-SI (PW-3) various questions to establish that the documents mentioned in paragraph 1 were not in his handwriting and that the recovery proceedings were fabricated. PW Tayyab initially stated that he could not replicate the handwriting on Exh. DA, Exh. DB, Exh. DC, and Exh. DD because his index finger was swollen. Then, responding to another question, he stated that the finger injury had occurred a year earlier and that he had not been declared disabled or unfit. The relevant portion of the cross-examination reads:

“I completed the investigation, I consumed 30 minutes in preparation of site plan. I reached the police station at 3:55 p.m. Exh. DA, Exh. DB and Exh. DC are written by me ... I cannot write down the same writing of Exh. DA, Exh. DB and Exh. DC due to the reason that my index finger is swelling condition ... I cannot write down the same writing [like in] Exh. DD (statement of Sajjad Nazir under section 161 Cr.P.C.) as well as the hand writing on Exh. PA, Exh. PB and Exh. PC due to the said reason. It is also incorrect to suggest that the reason given is absolutely wrong and that no index finger is swell (sic). At this stage, the witness again said that my finger is not swell, however, it was injured about one year back. I am not declared disable neither by any doctor nor anyone from my police department. I was not declared unfit by my hand over other organ/fingers. I can write down through this finger.” (sic) (emphasis added)

7.Given the above, the question arises as to whether the Additional Sessions Judge rightly declined the Appellant’s request to refer the aforementioned documents to the handwriting expert.

Applicable law

8.Articles 59, 61, 78, 78-A, 79, and 84 of the QSO set out the legal framework for proving a document and/or its handwriting or any signature thereon. In Mobarik Ali Ahmed v. State of Bombay (AIR 1957 SC 857), the Supreme Court of India (SCI) explained that the authorship of a document may be proved through various means, including direct testimony, handwriting comparison, internal consistency with related documents, or expert opinion. It emphasized

that proof of authorship is simply proof of fact and may rest on direct or circumstantial evidence. Building on Mobarik Ali, the SCI in Gulzar Alishri Raj Mohammad v. State of Himachal Pradesh (1998) 2 SCC 192, the SCI held that the evidentiary modes provided in sections 45 and 47 of the Indian Evidence Act 1872 – corresponding to Articles 59 and 60 of the QSO – are not exhaustive for proving the genuineness or authorship of a document.

9.Article 59 of the QSO provides that when the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting or finger impressions or any other expert matter, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts. This provision acknowledges that certain matters lie beyond judges’ knowledge or experience. Therefore, in such cases, expert input becomes necessary. The term “relevant fact” signifies that expert opinion is not merely ancillary commentary but is admissible evidence that may assist the court in resolving technically complex or disputed issues, such as handwriting authenticity. However, such an opinion is not binding. Its evidentiary weight depends on the expert’s qualifications, the methodology, and reasoning. An unsupported or speculative opinion carries little value, and where conflicting expert opinions are presented, the court must determine which is more persuasive in light of the entire record.

10.Article 84(1) of the QSO stipulates that, in order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one in question, even if that signature, writing, or seal has not been produced or proved for any other purpose. Article 84(2) provides that the court may direct any person present in court to write any words or figures to enable it to compare those words or figures with any alleged to have been written by such person. Article 84(3) states that these provisions also apply to finger impressions with any necessary modifications.

11.In Brindra Kumar Ghose and others v. Emperor (37 C 467 : 7 IC 359 : 11 Cr LJ 453), Jenkins, C.J. stated that section 73 of the Indian Evidence Act, which corresponds to Article 84 of the QSO, requires that the disputed writing must “purport” to have been written by the person to whom it is attributed, that is to say, the writing itself must state or indicate that it was written by that person. According to this interpretation of the section, it is not competent to a court under the first paragraph of the section, to compare with an admitted or proved writing another writing which does not “purport” to have been written by a particular person, but is alleged to have been written by that person. A disputed writing which does not “purport”, but is alleged to be in a person’s handwriting, cannot be compared with an admitted or proved writing, but only with the words or figures which, under the second paragraph of the section, the alleged writer is made to write in court. According to Monir, this narrow interpretation of the section though followed in subsequent Calcutta cases and by the Oudh Court in another case, has not found favour with the Bombay and the Madras High Courts where it has, in substance, been held that the word “purports”, in the first paragraph of the section is equivalent to “is alleged” and that a court is competent to compare with an admitted or proved writing not only a writing which “purports” to be in the alleged writer’s handwriting but also a writing which is alleged to be in his handwriting without expressly purporting to be so.1

12.Article 84 of the QSO is an enabling provision which is indicated by the use of the word “may”. It confers discretion on the court. However, while this power exists, it should be exercised with caution, particularly in cases involving technical complexity or genuine dispute. Judges are not handwriting experts; relying solely on visual comparison may lead to error. In Kessarbai v. Jethabhai Jivan (AIR 1928 PC 277), the Privy Council observed that it is not always safe to stake a decision on the correct determination of the genuineness of a signature by mere comparison with admitted signatures, especially without the aid of microscopic enlargements or any expert evidence. In Brindra Kumar Ghose, the Court stated that comparison of M. Monir, Law of Evidence, Fourteenth Ed., Vol.2, p. 1316

handwriting is always a hazardous and inconclusive mode of proof, particularly when undertaken by someone not conversant with the subject and without the benefit of guidance from counsel’s arguments or expert evidence. In Galstaun v. Sanatan Pal (AIR 1925 Cal. 485, 78 IC 668), it was held that it is undesirable for a judge to undertake the task of comparing signatures to determine whether forgery has been committed in a case. Courts in Pakistan have also held the same view.2

13.While Articles 59 and 84 of the QSO prescribe different methods of proof, one involving expert assistance and the other judicial scrutiny, they are not alternatives in the sense of being mutually exclusive. They are rather complementary. Courts may resort to Article 84 in clear-cut or straightforward cases where the similarity or dissimilarity is obvious. In more complex situations, where the writing is distorted, disguised, or forged with sophistication, they may prefer or permit recourse to expert opinion under Article 59.

14.In addition to the provisions of the QSO, sections 510 and 540 Cr.P.C. are relevant in the present context. Section 510 governs the admissibility of reports by certain government experts, such as chemical examiners, serologists, and fingerprint analysts, and allows the court to summon them if their oral examination is necessary. Handwriting experts are not among the categories expressly covered by this provision. Accordingly, their written reports are not per se admissible under section 510. The expert who authored the report must ordinarily be summoned for examination unless both parties consent to its admission without formal proof.

15.Section 540 Cr.P.C. empowers the court at any stage of the inquiry, trial, or other proceeding to summon any person as a witness, or examine any person in attendance, if it considers his evidence essential to the just decision of the case. This provision is couched in the widest possible terms and is designed to enable the court to obtain all necessary evidence for reaching a just conclusion, even if such evidence is sought after the closure of the prosecution case. The See: Messrs Waqas Enterprises and others v. Allied Bank of Pakistan and others (1999 SCMR 85), Mst. Umatul Waheed and others v. Mst. Nasira Kausar and others (1985 SCMR 214), Ghulam Rasool and others v. Sardarul Hassan and another (1997 SCMR 976), and Rehmat Ali Ismailia v. Khalid Mehmood (2004 SCMR 361).

discretionary power under section 540 may be exercised to summon or refer matters to a handwriting expert when a material dispute arises and the court finds that such evidence is necessary for resolving it. The guiding principle is that the interest of justice must prevail over procedural formality.

16.Courts in Pakistan have consistently held that the opinion of a handwriting expert is a weak type of evidence. In Syed Shabbir Hussain v. The State (1968 SCMR 1126), the Supreme Court of Pakistan held that “the evidence of the handwriting expert is neither the only nor the best method of proving the handwriting or signature of a person. It is at best only opinion evidence.” In Ch. Abdul Hamid v. Deputy Commissioner and others (1985 SCMR 359), the Supreme Court cited the following excerpt from M. Monir Law of Evidence (Vol. l, page 621): “... of all kinds of evidence admitted in a Court, this is the most unsatisfactory. It is so weak and decrepit as scarcely to deserve a place in our system of jurisprudence. In view of this infirmity of expert testimony, it is the settled practice of courts not to base a finding merely on expert opinion. Conclusion based on mere comparison of handwriting must at best be indecisive, and yield to the positive evidence in the case.” In Mst. Saadat Sultan and others v. Muhammad Zahur Khan and others (2006 SCMR 193 : PLJ 2006 SC 1478), the Supreme Court reaffirmed that the opinion of a handwriting expert, while relevant under the law, is a weak type of evidence and not conclusive. It is merely confirmatory or explanatory of direct or circumstantial evidence and cannot prevail over testimony that is confidence-inspiring and worthy of credence. Such opinion may be rebutted by independent and overwhelming evidence to the contrary. The Court observed that it is always risky to base findings regarding the genuineness of handwriting solely on expert opinion. This form of evidence must be received with great caution, particularly because an expert, however impartial he may appear, may unconsciously develop a bias in favour of the party who has called him. The Court further stated that while such evidence must be critically examined, its rejection does not imply that the expert has acted dishonestly. Although corroboration is not a legal requirement, the degree of reliance that a court may place

on expert opinion in any case depends on the facts and circumstances of that particular case.

17.Indian jurisprudence adopts a more nuanced view. In Murari Lal v. State of Madhya Pradesh, AIR 1980 SC 531 : (1980) 1 SCC 704, the SCI observed that there is no justification for equating the evidence of an expert with that of an accomplice or requiring corroboration as a rule. While it may be hazardous to base a conviction solely on the opinion of a handwriting expert, the risk arises not because experts are inherently unreliable but because all human judgment is fallible. An expert may err due to faulty observation, mistaken premises, or incorrect reasoning. The more developed and precise a scientific field is, the lower the risk of error. Fingerprint identification is highly reliable, whereas handwriting analysis is less exact and thus carries a greater margin of error. However, this does not justify a blanket requirement of corroboration in every case. The SCI emphasized that an expert deposes, not decides. His duty is to provide the judge with the necessary scientific criteria to assess the issue, enabling the judge to form an independent conclusion based on the facts and the expert’s reasoning. The Court further clarified that a judge is not precluded from comparing disputed and admitted writings under section 73 of the Indian Evidence Act (which corresponds to Article 84 of the QSO), even in the absence of expert evidence. It held that where expert testimony is available, it may assist the court, but where it is not, the court must perform the task itself. The duty to compare cannot be avoided on the ground that the court lacks expertise. Judges must discharge this function with or without expert guidance, using such aids as authoritative texts or personal experience where appropriate.

18.However, in Magan Bihari Lal vs State of Punjab (AIR 1977 SC 1091), the SCI held that expert opinion must always be received with great caution, particularly the opinion of a handwriting expert. It is considered unsafe to base a conviction solely on such evidence without substantial corroboration. In that case, the Court found it especially hazardous to convict the accused solely on the strength of the expert’s opinion.

19.In Lalit Popli v. Canara Bank and others (AIR 2003 SC 1796), the Supreme Court explained that handwriting identification is governed by sections 45, 47, and 73 of the Indian Evidence Act (which correspond to Articles 59, 61, and 84 of the QSO, respectively). Sections 45 and 47 deal with opinion evidence – either scientific or based on familiarity – while section 73 empowers the court to make a direct comparison. The Court clarified that these provisions are complementary. Although expert evidence need not be corroborated in every case, its weight depends on the surrounding circumstances. Even in the absence of expert assistance, the court may compare the writings and reach its own conclusion.

20.To conclude, Articles 59 and 84 of the QSO are not mutually exclusive. Where the writing is complex, disguised, or technically disputed, recourse to expert opinion under Article 59 is generally more appropriate. Nevertheless, if a party requests that a document be referred to a handwriting expert, such a request must be duly considered. If it is declined, reasons must be recorded, particularly where the authenticity of the document is material to the outcome of the case. This obligation flows from section 24A of the General Clauses Act, 1897, and the constitutional guarantee of a fair trial under Article 10A of the Constitution.

Application of law to the present case

21.The Appellant alleges that the recovery proceedings were fabricated and that key documents – Recovery Memo (Exh. PA), complaint (Exh. PB), and site plan (Exh. PC) – were not written by Tayyab/T-SI (PW-3). During cross-examination, PW Tayyab gave contradictory statements regarding his ability to write. He initially claimed that he could not reproduce the handwriting on the documents due to a swollen index finger. However, he subsequently stated that the injury had occurred about a year earlier and that he had never been declared unfit or disabled. These contradictions cast doubt on his credibility and give rise to a serious factual dispute regarding the authorship of the documents. In these circumstances, referring them to a handwriting expert under Article 59 of the QSO is necessary. The court cannot undertake a comparison under Article 84 because no

admitted or proved writing of PW Tayyab/T-SI is available on the record for that purpose. Expert opinion would provide relevant assistance in determining whether PW Tayyab was the author of the documents, which is central to the defence case.

22.The trial court declined the request partly on the ground that handwriting expert opinions are generally weak and not conclusive. While this observation reflects settled jurisprudence,3 it does not justify the rejection of such evidence altogether. Article 59 of the QSO expressly recognises expert opinion as a relevant fact. Its admissibility is not precluded merely because it is rebuttable. The evidentiary weight to be attached to the expert’s findings is a matter to be assessed at trial. Where authorship of the documents is in dispute and direct evidence is contested, the expert’s opinion may still offer meaningful assistance to the court in arriving at a just conclusion.

23.The trial court also relied on section 29 of the CNSA, which stipulates that in trials under the Act, it may be presumed that the accused has committed an offence unless the contrary is proved. However, this reverse burden does not absolve the prosecution of its initial duty. The Supreme Court has consistently held that such presumptions are not automatic but are triggered only after the prosecution establishes a prima facie case through credible evidence.4 Where the defence contests the recovery process and disputes the authorship of key documents, the presumption cannot be invoked to circumvent that burden. The accused must be afforded a reasonable opportunity to rebut the prosecution’s case through relevant evidence, including expert opinion.

24.The trial court’s reasoning that obtaining expert opinion would delay the trial is also not tenable. Procedural convenience cannot override the need for fairness. The defence has specifically challenged the authenticity of critical prosecution documents. That challenge would remain untested without expert analysis, and resultantly, the adjudication would be incomplete. Procedural convenience cannot See paragraph 16, above.

Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner

(PLD 2005 SC 63).

justify curtailing the accused’s right to lead evidence central to their defence. In Mrs. Kalyani Baskar vs Mrs. M. S. Sampoornam, (2007) 2 SCC 258, the SCI held that where the accused seeks to rebut the prosecution’s case using a document relied upon by the complainant (such as a cheque in a criminal proceeding), the court must not deny the opportunity to have that document examined by a handwriting expert. Refusing such a request deprives the accused of a meaningful chance to contest the prosecution’s case. A conviction rendered without affording the accused an opportunity to present material evidence amounts to a denial of a fair trial. A “fair trial” includes a fair and reasonable opportunity, guaranteed by law, to establish one’s innocence. The right to adduce evidence in support of the defence is fundamental, and its denial tantamounts to the denial of a fair trial.5 Similarly, in Muhammad Tariq and others v. Asif Javed and another (2009 SCMR 264), the Supreme Court of Pakistan held that a party is entitled to every possible assistance from the court to prove its case.

Conclusion

25.The authenticity of the disputed documents is a material issue in this case, and the defence is entitled to properly contest it. The trial court’s refusal to refer the documents for expert opinion, despite a genuine factual dispute, curtailed the Appellant’s right to a fair trial under Article 10A of the Constitution. Accordingly, this appeal is allowed and the Impugned Order dated 22.04.2025 is set aside. The Appellant’s application under Article 59 of the QSO is accepted.

(Raja Ghazanfar Ali Khan) (Tariq Saleem Sheikh) Judge Judge Naeem

Announced in open court on ________________

Approved for reporting

(Raja Ghazanfar Ali Khan) (Tariq Saleem Sheikh) Judge Judge

This principle was reaffirmed in T. Nagappa vs Y.R. Muralidhar (2008) 5 SCC 633.